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Seyani Brothers and Company (U) Limited V Enterprise Uganda (Application No 19 of 2021)

Tribunal · [2021] UGPPDPAAT 20 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of a decision of the Accounting Officer of the Respondent rejecting an administrative review application concerning procurement evaluation
Decision
Application allowed; procurement remitted to Entity for re-evaluation applying margin of preference; administrative review fees to be refunded to Applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Respondent erred in rejecting the Applicant's administrative review application as time-barred, as the ten-day period ran from the date of the Best Evaluated Bidder notice, not from the pre-bid meeting. The Tribunal further held that the Respondent erred in not applying the margin of preference during financial evaluation, as pre-bid meeting minutes cannot amend bidding documents without a formal addendum approved by the Contracts Committee. The procurement was remitted for re-evaluation in accordance with the bidding document.

Outcome

Application allowed; procurement remitted to Entity for re-evaluation applying margin of preference; administrative review fees to be refunded to Applicant

Facts

Enterprise Uganda invited bids for a construction project. Thirteen bidders submitted bids. After evaluation, Reliable Engineering and Décor Ltd. & Sheeba Construction (JV) was declared Best Evaluated Bidder at UGX 25,233,780,692, with the Applicant ranked second at UGX 25,945,698,989. At a pre-bid meeting on 7 June 2021, the Entity stated that the margin of preference would not apply, contrary to the bidding document which provided for a 7% margin of preference for qualifying Ugandan contractors. The Applicant requested a detailed evaluation report on 30 August 2021, received it on 31 August 2021, and noted the margin of preference had not been applied. The Applicant filed for administrative review on 8 September 2021. The Entity rejected the application as time-barred on 13 September 2021, arguing the ten-day period ran from the pre-bid meeting date. The Applicant then applied to the Tribunal on 24 September 2021.

Issues

  1. Whether the Respondent erred in law and fact when it rejected the Applicant's application for administrative review on the ground that it was time-barred.
  2. Whether the Respondent erred in law and fact when it did not apply the margin of preference during financial comparison of the bids.
  3. What remedies are available to the Parties.

Orders

  • The Application is allowed.
  • The decision of the Accounting Officer dated 13th September 2021 is set aside.
  • The procurement process is returned to the Entity for re-evaluation of the bids that proceeded to the financial comparison stage in line with the Public Procurement and Disposal of Public Assets Act 2003 as amended, the Regulations thereunder, the bidding document and this decision.
  • The Tribunal's suspension order dated 24th September 2021 is vacated.
  • The administrative review fees paid by the Applicant be refunded by the Entity.
  • Each party shall bear its own costs.

Rules and key headnotes

Administrative Review — Time Limits — Commencement of Limitation Period
The ten working days' time limit for lodging an administrative review complaint under section 89(3)(b) of the Public Procurement and Disposal of Public Assets Act 2003 begins to run from the date the bidder first becomes aware of the impugned decision, omission or breach, not from an earlier date when a potential irregularity was communicated but not yet acted upon.
Public Procurement — Margin of Preference — Mandatory Application
The provisions of section 59A of the Public Procurement and Disposal of Public Assets Act 2003 requiring application of a margin of preference are mandatory, not directory, and a procuring entity cannot waive or disapply the margin of preference through pre-bid meeting resolutions.
Public Procurement — Pre-Bid Meetings — Purpose and Effect
The essential purpose of a pre-bid meeting is to provide an opportunity for clarification and shall not be used to introduce new requirements that were not included in the solicitation document; pre-bid meeting minutes cannot amend or modify a bidding document.
Public Procurement — Modification of Bidding Documents — Addendum Requirement
Modification of a solicitation document can only be effected through issuance of a formal addendum approved by the Contracts Committee; clarifications made at a pre-bid meeting do not constitute an addendum and cannot alter the evaluation criteria stated in the bidding document.
Public Procurement Legislation — Mandatory vs Directory Provisions
Provisions of the Public Procurement and Disposal of Public Assets Act 2003 are mandatory and not merely directory; there is no way the Act can regulate practices in respect of public procurement unless the provisions are adhered to strictly to the letter, and non-compliance makes the proceedings fatal.
Administrative Review — Tribunal Powers — Substitution of Decision
Section 91I(6) of the Public Procurement and Disposal of Public Assets Act 2003 confers upon the Tribunal wide powers to set aside the original decision and substitute it with a new decision of its own, placing the Tribunal in the shoes of the original decision-maker with authority to re-make the decision.

Legislation cited (14)

Cases cited (3)

Full judgment

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Seyani Brothers and Company (U) Limited V Enterprise Uganda (Application No 19 of 2021) 2021 UGPPDPAAT 20 (14 October 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.